New opinion — the “F*** Medicare” case

US v. Kolodesh — criminal — affirmance — Jordan

The Third Circuit today affirmed the conviction and sentence of a defendant convicted of Medicare fraud. The defendant raised a blizzard of different challenges on appeal, but the one the opinion seemed to relish the most was an argument that prosecutor committed misconduct by using a defendant’s recorded statement that “We have to f*** them over this time.” The defendant’s brief termed this the “F*** Medicare Statement,” a phrase the opinion repeated four times in denying the claim.

The opinion repeatedly noted errors and omissions by Kolodesh’s trial and appellate counsel: raising new contentions in the reply brief, repeatedly failing to contemporaneously object, challenging the accuracy of a transcript but “seem[ing] to forget, however, that he stipulated at trial to the truth and accuracy of the transcripts,” twice waiving appellate arguments through cursory briefing, misstating the record, and twice “simply rearguing the weight of the evidence, without pointing to anything that shows the District Court clearly erred.” Coming on the heels of the harsh Lehman Brothers opinion, I wonder if we’re seeing a trend towards a court less reticent about calling out lawyers.

Joining Jordan were Chagares and Barry. The case was decided without oral argument.